Best practice for church leaders dealing with safeguarding allegations against staff

Employment law considerations.

In our recent article 'What does the Charity Commission expect church leaders to do when they are told about safeguarding issues?' We looked at Charity Commission expectations when church leaders are informed about safeguarding issues. In this article we focus particularly on the obligations on church organisations as employers when faced with safeguarding allegations against a member of staff.

Undertaking a fair process which mitigates risks is not straight-forward and we strongly recommend that church employers take specialist legal advice at the outset. We set out below an outline of the steps you will need to consider.

Please note that this article does not cover particular steps to be taken where allegations are raised against non-employees such as trustees, volunteers or officer holders, and church organisations should take specific legal advice in such cases.

Information sharing

In matters of this kind, timely information sharing is key and readers will be aware that data protection law does not prohibit employers from sharing information for safeguarding purposes. 

When carrying out internal investigations, church employers should of course ensure that information is shared only on a need to know basis and that all those involved are aware of the confidentiality of the process.

Initial steps

Upon receiving an allegation, it is crucial to take the matter seriously and act promptly in line with your safeguarding policy and procedures. Ensure that the safety of the alleged survivor/victim is prioritised and that they are provided with appropriate support.

Consider whether you should report the allegations to a safeguarding partner and/or to the police before you take any further steps. Bear in mind that reporting an employee to the police without good reason could be in breach of trust and confidence and you may wish to take legal advice before doing so.

In some cases, these bodies may ask you to delay your investigation to avoid increasing the safeguarding risks or prejudicing a criminal investigation. However, if the matter becomes protracted, church employers may need to take the next steps in the disciplinary process on the basis of the information they hold rather than waiting for an external process to conclude.

As an initial step, you should also consider the notification requirements of any relevant insurance policy where there is a threat of a claim, either from a complainant or employee.

Unless safeguarding partners or the police ask you not to continue your process, or safeguarding concerns suggest you should not do so, you should carry out an initial investigation. This might include speaking to the complainant, the employee and relevant witnesses about the allegations. It might also involve seeking information from the police or other bodies.

This initial information gathering will inform your decision as to whether to commence a disciplinary investigation. If so, you should ensure that you follow your disciplinary policy and the Acas Code of Practice on Disciplinary and Grievance Procedures.

Consider suspension or alternative measures

To reduce safeguarding risks and to ensure a fair investigation, consider suspending the employee on full pay. Suspension is potentially in breach of the employment contract and so should only be used where it is reasonable and necessary to take this step because of the risks of allowing the employee to continue to work. These includes risks to the complainant, members of the organisation, beneficiaries, children and vulnerable people, risks to colleagues and to the organisation itself (such as reputational risks), and risks to the integrity of the investigation.

Consider if there is a practicable alternative to suspension which reduces risk to an acceptable level, such as asking the employee to work from home or moving them to a different workplace.

Disciplinary process where there are safeguarding allegations

Appoint an investigating officer to conduct a thorough investigation. The investigating officer should gather evidence, interview all parties involved, compile a report with their findings, and make a recommendation as to whether the matter should go to a disciplinary hearing.

Ideally, your investigator should have relevant training and experience in investigating safeguarding concerns. In complex cases or where a senior employee is implicated, you may wish to appoint an external person to carry out the investigation. You may be able to call on resources from partner organisations.

If the evidence found in the investigation warrants it, hold a disciplinary hearing in line with your policy. The employee should be given the opportunity at the hearing to put their version of events and make their case to defend themselves against the allegations.

The employee may refuse to engage with the investigation process and/or the hearing, particularly if there are parallel criminal proceedings. Employees in these circumstances may agree to provide a written witness statement instead of attending an interview.

The employee has a right to have a willing colleague or trade union representative as a companion at the hearing. Where there are parallel criminal proceedings, the employee may seek to have their legal representative with them at the hearing. This is outside normal disciplinary process, but you should take legal advice on whether this would be reasonable to allow in the circumstances.

You should consider whether there are risks in witnesses being identified to the employee and attending the hearing in the presence of the employee and take reasonable steps to mitigate these risks. However, you should also bear in mind the risk that the process could be found to be unfair if the employee does not know who is raising the allegations.

If there is a decision to dismiss, the outcome letter should include a detailed explanation of the reasons for the decision, referring clearly to the organisation’s safeguarding obligations and the relevant rules and policies which have been breached while making clear why these are important to the organisation. If part of the reason for the decision is reputational damage to the organisation, you should ensure that evidence on reputational damage is put to the employee in the hearing.

Reporting safeguarding dismissals to third parties

Once the disciplinary decision has been reached, thought should be given to whether you have an obligation to report the matter to third parties. This might include:

• The Disclosure and Barring Service

• The Local Safeguarding Board / social services

• The Charity Commission

• Any relevant professional regulatory body

• Partner organisations

Wellbeing support for the employee

It is important to remember that allegations of this kind can be highly stressful for the employee concerned as well as to their colleagues. You should therefore do what you reasonably can to provide or signpost to wellbeing support for the employee and witnesses throughout the process.

Procedure on receiving safeguarding allegations

It can be very concerning to receive safeguarding allegations. It is advisable for church employers to have a clear procedure in place to for your organisation to steer a course through its charity law, employment law and safeguarding obligations. This will help your trustees and employees to feel more confident in taking the right steps and to minimise risks.

Seeking legal advice at an early stage can also help to reduce risk and to navigate a clear path through these difficult issues. Our employment solicitors within the faith team at Wrigleys would be happy to assist church employers with policy, procedures and dealing with specific safeguarding allegations.